These Terms and Conditions (the “Agreement”) shall govern the sale of services listed on the reverse side by AJAX METAL PROCESSING, INC. (“Seller”) to the Purchaser indicated on the reverse side (“Purchaser”), whether resulting from written purchase orders, phone orders, electronic data interchange, release, or any other means (collectively, the “Orders”).
1. Agreements of Sale. Any terms and conditions of an Order that are different from, in addition to, or inconsistent with the terms and conditions contained in this Agreement shall not be binding on Seller or applicable to the metal processing or shipment of parts which is the subject of this Agreement. Seller makes sales of its metal processing services only under the terms and conditions of this Agreement, unless otherwise agreed to in writing by a duly authorized representative of Seller. Purchaser agrees that the existing condition of parts supplied by Purchaser have been engineered or designed to withstand the metal finishing treatment necessary to obtain the results specified by Purchaser in the Order.
2. Payment Terms. Purchaser will pay Seller’s invoices net thirty (30) days after receipt by Purchaser of such invoice unless otherwise indicated therein. Seller shall charge a minimum lot charge for the metal processing of any part, regardless of the number of parts processed by Seller. The price for processing the parts is calculated per pound or per piece and is subject to a minimum lot charge. The minimum lot charge shall apply even if the calculated price is less than the minimum lot charge. But if Purchaser submits a part for processing as “initial samples” and submits the same part for production processing with a subsequent Order and the total invoice for such Order is twice the minimum lot charge, Seller shall, upon Purchaser’s written request, credit Purchaser’s account for the cost of the initial samples, provided that Purchaser identifies Seller’s shop order number, part and production quantity within twenty (20) days after the final processing of the Order. Acceptance or processing of Orders shall be subject to approval by Sellers credit department. If Purchaser fails to comply with payment terms set forth in Seller’s invoice, Seller may suspend and/or defer processing under any Order made by Purchaser, revise the payment terms or price for processing, or cancel the remaining unprocessed Orders. Seller may also require satisfactory assurance(s) of performance from Purchaser. Any tax, duty, or freight charge which Seller is obligated to pay or collect will be for the account of Purchaser and may be added to the contract price.
3. Title, Risk of Loss, Returns. Title to and risk of loss of all shipments of finished parts passes to Purchaser upon delivery to carrier at Seller’s facility. All shipment and freight costs will be charged to Purchaser, unless otherwise stated on a signed quotation. Any additional Inspection of parts is solely at Purchaser’s expense. Purchaser must obtain a return authorization number and return instructions from Seller prior to returning any parts not complying with Purchaser’s Order. Seller shall not accept any return from Purchaser that does not have a return authorization number. Purchaser assumes responsibility for inspecting and promptly notifying Seller of any nonconformity to Purchaser’s finishing and treatment specifications.
4. Shortages. Purchaser must present claims for shortages in shipment of parts within five (5) working days after receipt of the parts by Purchaser.
5. Limited Warranty. Seller warrants that the treatment and/or finishing of the parts by Seller will fairly meet Purchaser’s stated specifications therefor at the time of Order, and that the metal finishing will be conducted in a good and workmanlike manner. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any further processing, assembly or other work performed on parts after processing by the Seller is at the Purchaser’s risk. No claim will be considered due to deformity, embrittlement, sticking, filling of recesses, tangling, nicking, introduction of foreign material or alteration of material in the finishing process, except by prior written agreement.
6. Limited Liability. Purchaser’s exclusive remedy for breach of contract, breach of warranty or any other claim is limited to a refund of processing charges not to exceed two (2) times such processing charges. Seller shall not be liable for any other damages, whether direct, indirect, incidental, or consequential, including but not limited to, loss of profits, loss of production, sorting or containment costs, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed by Seller.
7. Excusable Delays. Seller is not responsible for any delay or deficiency in production or shipment of parts caused in whole or in part by: acts of God, riots, wars, terrorism, fires, explosions, breakdowns, or accidents; strikes or other labor difficulties; lack or shortage of labor, materials, utilities, energy sources, or transportation facilities; delays of carriers; compliance with governmental rules, regulations, priorities, allocations, or other governmental requirements; or any other cause beyond Seller’s control. The foregoing is in addition to any excuse for non-performance provided by the Michigan Uniform Commercial Code or other applicable law.
8. Cancellation by Purchaser. Purchaser may cancel this Agreement or any Order only upon written consent from Seller on terms acceptable to Seller, including indemnification of Seller against any loss from cancellation.
9. General. This Agreement is the entire agreement of Seller and Purchaser with respect to its subject matter. The parties may amend this agreement only by a writing signed by the parties. In the event that one or more clauses of this Agreement are found to be unenforceable, illegal or contrary to public policy by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. Any failure of Seller to insist upon strict performance of any term of this Agreement shall not waive its right to strict performance thereafter. This Agreement is governed by the laws of the State of Michigan, without regard for its choice of law rules. Seller and Purchaser agree that any legal proceeding with respect to this agreement shall be brought only in a court of the State of Michigan, or in a court of the United States sitting in Michigan, and both Seller and Purchaser submit to and accept generally and unconditionally the personal jurisdiction of those courts with respect to their person and property. If Purchaser becomes insolvent, if a receiver is appointed, if there is an assignment for the benefit of creditors, or if a petition for voluntary or involuntary bankruptcy on behalf of Purchaser is filed, Seller may, without further obligation to Purchaser terminate any Order or this Agreement immediately in whole or in part.